Laouini v. Clm Freight Lines, Inc.

586 F.3d 473

Moncef LAOUINI, Plaintiff-Appellant, v. CLM FREIGHT LINES, INC., Defendant-Appellee.

No. 08-3721.

United States Court of Appeals, Seventh Circuit.

Argued August 4, 2009.

Decided August 20, 2009.

Ronald E. Weldy, Attorney, Weldy & Associates, Brian J. Paul, Attorney, Ice Miller, Indianapolis, IN, for Plaintiff-Appellant.

Mark W. Ford, Attorney, Ice Miller, Indianapolis, IN, for Defendant-Appellee.

Before FLAUM, KANNE, and WOOD, Circuit Judges.

FLAUM, Circuit Judge.

The sole issue on appeal in this employment-discrimination lawsuit is whether the defendant, CLM Freight Lines ("CLM"), met its burden at summary judgment of proving that the plaintiff, Moncef Laouini, did not timely file a charge of discrimination with the EEOC. The agency's Indianapolis office accepts administrative charges of discrimination by fax, and plaintiff's counsel insists that he faxed Laouini's charge during business hours on the final day for timely filing. A transmission record from counsel's fax machine confirms that he successfully faxed some document to the agency that day, but there is nothing in the agency's files evidencing receipt of counsel's fax. The district court concluded that Laouini could not prove that the charge had been timely filed and granted summary judgment for CLM. We vacate the judgment and remand for further proceedings.

I. Background

Laouini, an Arab of Tunisian descent, worked as a truck driver for CLM from January 2005 until they terminated him on June 16, 2006. In August 2007 he sued CLM, claiming race and national-origin discrimination in violation of Title VII. In his complaint Laouini alleges that he "filed" a charge of discrimination with the EEOC on Thursday, April 12, 2007, the date the parties agree was the deadline for a timely charge. However, a "received" stamp on the charge in the EEOC's file shows that it was not processed by the agency's Indianapolis office until Monday, April 16, four days after the deadline. CLM thus moved to dismiss Laouini's complaint as time-barred and attached copies of the charge and the right-to-sue letter, which states that the agency was dismissing the charge as untimely.

In response Laouini submitted an affidavit from his lawyer, who avers that on April 12, 2007, he instructed his assistant to prepare a fax cover sheet to the EEOC and that either he or his assistant faxed that cover sheet and Laouini's two-page administrative charge to the agency's Indianapolis office that day. The cover sheet includes a request that the charge be file-stamped as of April 12 and states that counsel mailed the original and a copy of the charge to the EEOC the same day. Laouini also submitted a copy of a printout from counsel's fax machine confirming that a three-page document had been successfully transmitted to an Indianapolis fax number at 4:05 p.m. on April 12, 2007. An affidavit from the supervisor who oversees charge-processing at the agency's Indianapolis office confirms that the office accepts charges of discrimination by fax and that the number on counsel's fax-transmission record is indeed the fax number attorneys are instructed to use for submitting charges. The supervisor also states that charges faxed before 4:30 p.m. are deemed filed as of that day, though she says nothing specific about Laouini's charge.

CLM then produced a copy of a brief internal memo from the EEOC's administrative file authenticated by the district director in Indianapolis. The memo, dated May 10, 2007, documents a conversation between an EEOC employee and Laouini's lawyer; during that discussion counsel recounted that his assistant had faxed the charge of discrimination on April 12, and the EEOC employee replied that there was "no evidence in the case file" indicating that Laouini's charge had been received on April 12. The employee told counsel that the only copy of the charge in the file was the one mailed on April 12 and received on April 16.

The district court converted CLM's motion to dismiss into a motion for summary judgment and concluded that a factfinder could not reasonably conclude that Laouini's charge had been timely filed with the EEOC. According to the court, although the fax confirmation shows that something had been faxed from counsel's office to the EEOC on April 12, there was no evidence that the fax was actually received or that the document that had been faxed was Laouini's charge. The court found it significant that Laouini's lawyer could not say with certainty that he personally fed the charge into the fax machine. The court also reasoned that, because there was evidence that faxes received by the EEOC's Indianapolis office before 4:30 p.m. are deemed filed the same day, and Laouini's charge was not file-stamped until it arrived in the mail on April 16, the fax was never received. Finally, the court declared that, although the local EEOC office allows filing by fax, EEOC regulations do not expressly approve of this method, and so any lawyer who submits a charge by fax "acts at his or her peril."

II. Discussion

Before bringing a lawsuit under Title VII, Laouini was required to file a charge of discrimination with the EEOC. See 42 U.S.C. § 2000e-5(e)(1). Because Indiana is a "deferral state," meaning it has a state agency with enforcement powers parallel to those of the EEOC, Laouini had 300 days from the alleged unlawful employment practice to file a timely charge. See id.; 29 C.F.R. § 1601.80; Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 445 (7th Cir.1994); Gilardi v. Schroeder, 833 F.2d 1226, 1230 (7th Cir.1987). Failure to timely file an administrative charge is an affirmative defense, and the burden of proof at summary judgment therefore rests on the defendant. See EEOC v. Watkins Motor Lines, Inc., 553 F.3d 593, 596 (7th Cir.2009); Salas v. Wis. Dep't of Corr., 493 F.3d 913, 921-22 (7th Cir.2007). Summary judgment thus was appropriate only if CLM demonstrated the absence of a genuine factual dispute over whether Laouini's charge had been timely filed. See Lucero v. Nettle Creek Sch. Corp., 566 F.3d 720, 728 (7th Cir.2009). We review de novo a grant of summary judgment, construing all facts and inferences in the light most favorable to the nonmoving party. Id.

On appeal Laouini argues that there is a genuine factual dispute about the timeliness of his charge and thus the district court erred in granting summary judgment for CLM. As Laouini points out, the relevant administrative regulation provides that a charge is "deemed to be filed with the Commission upon receipt" and is timely if "received within 300 days from the date of the alleged violation." 29 C.F.R. § 1601.13(a)(4)(ii)(A) (emphasis added). Because he submitted evidence from which a reasonable factfinder could conclude that the local EEOC office received the charge by fax on April 12, he argues, CLM's evidence that the charge was not processed until four days later is insufficient to warrant summary judgment. CLM responds that "proof that a message has successfully exited one fax machine is not proof that the message was successfully received by another fax machine." And, CLM contends, because Laouini submitted no other evidence that the fax was received on April 12, no reasonable factfinder could conclude that the charge was timely.

This case, then, turns in part on the evidentiary significance of a fax confirmation generated by the sender's machine, an issue we have not previously addressed. Although CLM insists that such a confirmation is "no evidence" of receipt, the company does not cite any authority supporting this proposition or acknowledge that most courts to address the issue have concluded otherwise.

CLM first equates a fax transmission with a common letter and asserts that the confirmation generated by counsel's fax machine "no more proves receipt of the charge than a postmark proves receipt of a letter." Apart from the fact that this analogy does not support what a fax confirmation is, the comparison to a letter actually undermines CLM's position because it is well-established that evidence of proper mailing raises a rebuttable presumption of delivery. See Vincent v. City Colls. of Chi., 485 F.3d 919, 922-23 (7th Cir.2007) ("Evidence of mailing is evidence of delivery."); In re Nimz Transp., Inc., 505 F.2d 177, 179 (7th Cir.1974) ("[A] timely and accurate mailing raises a rebuttable presumption that the mailed material was received, and thereby filed."). Several courts have drawn on this presumption, either explicitly or implicitly, to conclude that a fax confirmation generated by the sender's machine similarly creates a rebuttable presumption that the fax was received by the intended recipient. See Stevens Shipping & Terminal Co. v. JAPAN RAINBOW II MV, 334 F.3d 439, 444 (5th Cir.2003) (explaining, in maritime-lien dispute, that fax confirmation of successful transmission raises presumption of receipt because faxes are a "reliable and customary method of communicating in the shipping business"); Erwin v. Town of Jena, 987 So.2d 281, 285 (La.Ct.App.2008) (adopting presumption of receipt and explaining that faxes are "generally accepted as a vital means of communication in modern technological culture" and "the judicial world has recognized that fax transmissions are reliable and trustworthy" (internal quotation marks and citations omitted)); Renegade Oil, Inc. v. Progressive Cas. Ins. Co., 101 P.3d 383, 385-86 (Utah Ct.App.2004) (noting rebuttable presumption of receipt and declining to adopt rule that "all risk of communication by fax transmission is borne by the sender and not by the receiver"); American Paging of Tex., Inc. v. El Paso Paging, Inc., 9 S.W.3d 237, 240 (Tex.App.1999) (concluding that "[a]dmission of evidence showing a telephonic document transfer to the recipient's current telecopier number" gives rise to presumption of receipt). The presumption of receipt has also been applied to telegrams, see Wagner Tractor, Inc. v. Shields, 381 F.2d 441, 446 (9th...